2024
SUPREME COURT
GHANA
CORAM
AI Generated Summary
The Supreme Court, exercising its supervisory jurisdiction, dismissed by a 4–1 majority an application for certiorari brought by an accused person charged with treason-felony. The applicant argued that section 182(b) of Act 29 merely restates the constitutional offence of high treason found in Article 3(3), so he should be tried by three High Court judges, and that the High Court erred in refusing to refer the alleged constitutional issue to the Supreme Court. The majority held that treason-felony is a distinct, lesser statutory offence, that Article 3(3) was not implicated, and therefore no genuine question of constitutional interpretation arose. Consequently, the High Court acted within jurisdiction, and the application for certiorari was refused. Kulendi JSC dissented, reasoning that section 182 conflicts with Articles 19 and 139, so a constitutional issue did arise and should have been referred.
Applicant prays for an order of certiorari to quash the ruling of the High Court dated 27 th May 2024. The Applicant submits in paragraph 9 of his affidavit that he ought to be tried by 3 Justices of the High Court as prescribed under Article 19(17) as having been charged under Article 3(3) and not by a Judge and jury as prescribed by section 182.
The Applicant was charged with the offence of Treason felony under section 182(b) of the Criminal and Other Offences Act 1960 (Act 29) which prescribes the offence as a first-degree felony. It is clear from the dictum of Sophia Adinyira JSC in Kwabena Bomfeh vrs AG (2019-2020) 1 SCGLR 137 that
'every conceivable case may originate in the Supreme Court by the stretch of human ingenuity and the manipulation of the language to raise a tangible constitutional question. Practically, every justifiable issue can be spun in such a way as to embrace some tangible constitutional implication.' (Emphasis supplied)
The argument that section 182(b) contravenes Article 3(3) and cannot co-exist with it has not been made out. Article 3(3) is about the offence of High Treason and section 182(b) is about the offence of treason felony. There is nothing wrong with a lesser offence being carved out of a greater offence. The mode of trial and prescribed penalty show that this is a lesser offence than what is set down in Article 3(3). The High Court was right to refuse the referral in the ruling of May 27 th 2024 as no constitutional issue arose as to the meaning of article 3(3) in respect of section 182(b).
Application refused by 4:1 majority. Kulendi JSC dissenting
(SGD.) PROF. H.J.A.N MENSA BONSU (MRS.) (JUSTICE OF THE SUPREME COURT)
(SGD.) S.K.A ASIEDU (JUSTICE OF THE SUPREME COURT)
(SGD.) H. KWOFIE (JUSTICE OF THE SUPREME COURT)
(SGD.) Y. DARKO ASARE (JUSTICE OF THE SUPREME COURT)
KULENDI JSC.
On the 11th of December 2024, I expressed my dissent to the majority opinion delivered by this Honourable Court in the matter before us. Having carefully considered the facts, the applicable law, and the reasoning underlying the majority's decision, I find myself unable to agree with the reasoning and conclusions reached.
In consequence and with due deference to my venerable sister and brethren in the majority, I hereby articulate the basis of my disagreement and the principles that inform my position.